Law v. Decency

Should a school district be able to insist that a rape victim cheer for her assailant? Legally, perhaps. But why should the question ever arise, if anyone on the board has a scrap of human decency?

A high-school cheerleader reports being raped by a star athlete.The athlete is allowed to plead guilty to misdemeanor assault, and returns to playing. The cheerleader refuses to cheer for him. One grand jury refuses to indict; a second charges him, and he’s allowed to plead down to a misdemeanor assault charge. Before the indictment is handed up, the cheerleader refuses to cheer for her assailant. The school district bounces her from the cheerleading squad. Her parents sue to have her reinstated.

Now it seems to me that, as a legal matter, the school district was within its rights: if a cheerleader doesn’t want to do what a cheerleader does – no matter how strong her personal justification – then the squad is entitled to find another cheerleader. (Imagine an observant Jewish student who had a part in the school play but couldn’t perform Friday evening. I wouldn’t call it a deprivation of religious liberty to give someone else the part.) To call this a violation of the student’s free speech rights seems a terrible stretch.

I suppose it’s even possible that the claim was “frivolous” in the legal sense, though unless the specific question of a crime victim had already been resolved it seems to me that a simple “no” would have sufficed, without the unnecessary piling-on of an attorney’s-fees award. And in the absence of a live Constitutional question it’s hard to see what purpose would have been served by arguments in front of the Supreme Court.

But it seems to me that what this shows is that resolving all questions as questions of individual legal rights is a bad way to do business. The school district was wrong to put a rapist on the basketball court, and wrong again to punish the victim by giving her a choice between giving up cheerleading and dancing in honor of the boy who had forced himself on her. Her silence every time that boy took a foul shot would have been a decent, dignified demonstration against sexual assault.

Instead, the cheerleading coach, and the school board, chose to take side with the assailant against the victim. It’s fine to criticize the Fifth Circuit for the attorney’s-fees award, but we should reserve most of our animus for the local authorities who acted within their legal rights but beyond the bounds of ordinary decency.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out.
Books:
Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken)
When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The EconomistAgainst Excess: Drug Policy for Results (Basic, 1993)
Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989)
UCLA HomepageCurriculum Vitae
Contact: Markarkleiman-at-gmail.com
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21 thoughts on “Law v. Decency”

Apologies to those who commented on this post earlier; I accidentally put it up as “admin” rather than under my own username. Feel free to re-post. (Malcolm, you’re also free to not re-post; we can take it as read that any mention of education includes your rant against public schools.)

At the time of the non-cheering incident, a grand jury had just refused to indict Bolton and two others for the alleged rape. What justification would the school have had at that point to kick him off the team?

One issue that I have with my fellow liberals is that they’re all about due process and innocent until proven guilty unless rape or sexual assault is involved. Then it’s guilty unless proven innocent…and even then, probably still guilty.

I disagree only in the sense that the “frivolous” decision is just as abhorrent as the school’s decision: it’s a complete slap in the face to anyone who takes victim’s rights (and emotions) seriously to say that the girl had no legitimate conflict of interest that could have been resolved by the school in a different way. Disgusting all around.

Sean, I have not read the opinion, but I assume that the “frivolous” decision did not say that the girl had no legitimate conflict of interest that could have been resolved by the school in a different way. It said that there was no legal basis for her claim, and, if that is true, then she should sue her own lawyer for malpractice.

Chuchundra is correct as to the timeline – a first grand jury declined to indict the player, after which the school reinstated him for the basketball season and the free-speech incident took place.

To recap: there was a party involving high school students and alcohol in Oct 2008, and a sexual incident occurred. The cheerleader alleged rape and the athlete was suspended from the football team.

A first grand jury declined to indict, noting conflicting testimony and the fog of booze.

At that point, the school reinstated the athlete for the basketball team (spring 2009). At this point, the cheerleader refused to cheer a player who is by her allegation a rapist yet is unindicted, not to mention unconvicted and un-suspended. The school administrators did what they did, which seems ludicrously insensitive but – there was an innocent until proven guilty issue, and the school feared creating a liability for themselves if they allowed their agent (the cheerleader) to endorse the rape allegation rejected by the grand jury.

Well – a second grand jury *did* indict the athlete in Nov 2009, at which time he is kicked out of school and off the football team for the balance of the season. Eventually he takes a plea deal.

I’m kind of sympathetic to the school– after all, the first grand jury declined to indict the boy.

But as to Henry’s post, why is the onus always on the girls, and never on the boys? If the cheerleader’s friends had a duty not to cheer for her attacker, what about the basketball team? Don’t they have a duty not to play on a team with rapists on it?

Cardinal Fang, the point of the cheerleaders not cheering would not have been to protest the presence of the rapist; it would have been to show solidarity with the victim. If the victim had been allowed not to cheer the rapist, then there would have been no reason not to play. Viewing this as sexism is a real stretch. After all, one of the cheerleaders could have been George W. Bush.

What, they had some way of knowing that the charge which the grand jury refused to bring was true? Or maybe, (Back to what Chuchundra said.) you just think we ought to automatically assume all rape allegations are true, and act accordingly?

I think her case probably WAS legally frivolous. My only complaint was that the attorney should have to pay the fees, not the parents. It’s a lawyer’s freaking JOB to recognize what’s frivolous.

“I think her case probably WAS legally frivolous. My only complaint was that the attorney should have to pay the fees, not the parents. Itâ€™s a lawyerâ€™s freaking JOB to recognize whatâ€™s frivolous.”

Brett, you’re right, and that’s why I suggested above that she sue her lawyer for malpractice — then he or she will have to pay. The reason that the fee award is assessed against the party and not the lawyer is that, formally, it is the party who brought the frivolous action. If the girl had won the suit and the court had ordered the school to pay her attorneys’ fees, the payment would have been to her. And the payment would not necessarily have been in the amount that she had agreed to pay her attorney; rather it would have been in an amount that the court found “reasonable.” If that amount were less than she’d agreed to pay her attorney, then she’d owe the difference; if it were more, then she’d get the windfall.

In explaining this, I am not defending the court’s assessing the party rather than the lawyer with the fee. Just because the party would get the fee if one were awarded to her does not justify assessing the fee against her rather than her lawyer.

I think the chief reason that the costs are charged to the party and not the lawyer, is that it’s lawyers who get to decide who the costs are charged to. The US legal profession is, to a large extent, designed to make sure that lawyers profit no matter what.

More precisely, in the case of federal awards of attorneys’ fees, it is the courts who decide who the costs are charged to, because Congress has not specified. The courts, of course, are run by judges who are lawyers, but, in theory, they are implementing what they perceive to be congressional intent and are not trying to enable lawyers to profit. I address only the theory, not the practice.

CharleyCarp, what could the lawyer have said that would make it appropriate to blame the client (assuming that that is your point)? If the lawyer had said, “This case is so frivolous that you risk having the court order you to pay the other side’s attorneys’ fees,” and the client said, “Sue anyway,” then the lawyer still should not have done so.

By the way, under Rule 11 of the Federal Rules of Civil Procedure, lawyers can be assessed attorneys’ fees for filing frivolous claims. Therefore, the lawyer took personal risk in filing the suit.

Brett: What, they had some way of knowing that the charge which the grand jury refused to bring was true?

Yes, they probably did, because some of them were probably there. According to the story in the paper, the girl was raped at a party. She was in a room screaming NO NO as she was being raped. The other guests at the party heard her cries and banged on the door to get into the room. When they did get in, they found a partially undressed girl sobbing, her alleged attackers having escaped through a window. The girl said she had just been raped. The police arrested the two young men whom she accused.

If you were at that party, what would you think? If your friend was at that party and told you that story, what would you think?

It would have been a nice show of solidarity if the other cheerleaders had refused to cheer, and I would agree that they “should” ideally have done so. But in the actual world, they are a bunch of teenagers who were being bullied and commanded by their coach. Hard to blame them for not having the courage to say no, or for not even thinking of it. It’s also possible they didn’t believe the accusation, for whatever reason. As for the basketball team, the rapist probably said it was all lies and they believed him. We shouldn’t be blaming a bunch of kids for not defending the victim when there are adults who are actively attacking her. It’s very obviously the fault of the school officials and, most especially, that first grand jury.

And I dispute that they should have done nothing after the grand jury did not indict. There is a very big difference between a grand jury saying there is not enough evidence to pursue a conviction, and saying that nothing happened. They should have assumed that *something* happened, that the girl had a very valid reason to be upset, and tried to accommodate both the (possible) victim and the (possible) rapist. They could have easily taken the personalized cheers out of their routine, for example. Instead they acted as if the girl had made up the allegation and had no cause to be upset.

Henry, the fact that sanctions were ordered doesn’t mean there was malpractice. Or, certainly that it was or should have been obvious beforehand that they would be. I’m going to guess that it probably meets the standard of care in Texas if the lawyer said that it was a difficult case, and he didn’t know if a judge would buy his theory. I’m sure you can find someone with a good resume to say it does.

Maybe the parents can get a jury to whack the lawyer: it’ll cost them something in the six figure range, though, so even if it was a slam dunk — and again we’d have to know a lot more than we do to say that — that’s not exactly the first course of action one might expect these parents, having just had some contact with our legal system, to embrace.

(I’m full of sympathy, by the way: I have a case right now trying to get a substantial sanction overturned where the conduct at issue was, I say, the fault of my predecessor, rather than my new client.)